By Peter Skerry
Thursday, April 18, 2024
The ongoing crisis at the U.S.–Mexican border
has one distinct virtue. It presents Americans with the opportunity to clarify
various misconceptions about what is not merely the largest wave of migrants in
our history, but also the most disorderly and disruptive. These misconceptions
have distorted our rightful understanding of ourselves as the world’s
preeminent nation of immigrants. And after more than five decades of evasion
and outright policy failures, immigration is now at the core of the profound
disaffection so many Americans express toward our elites and mainstream
institutions. It therefore behooves us to stop and scrutinize the ill-founded
assumptions on which various positions and policies — whether “pro-” or
“anti-immigration” — have become not just based but entrenched.
But a funny thing happened on the way to this crisis. The
size, relative suddenness, and sustained nature of the mass of humanity
arriving at our southern border has rendered dramatically less salient what had
long been the dominant frame of the ongoing national debate: the line between
legal and illegal immigration. Our decades-long national preoccupation with
illegal immigration has — at least for now — been eclipsed by the more pressing
concern, among elected officials and citizens alike, of addressing the chaos
not only along our southern border but also in our major metropolitan areas.
Legality has been superseded by reality.
At least since 1994, when the thunderbolt of California’s
Proposition 187 prohibited the provision of most public services to the
undocumented (before being gutted by the federal courts), the national debate
over immigration had been fixated on the presumptively bright line between
legal and illegal immigration. Yet that line had always been rather blurred,
and in recent months it has become almost invisible. Under the Biden
administration’s disastrous policies, jurisdictions — not just along the border
but across the nation — have been overwhelmed with unprecedented numbers of
migrants in need of basic services and support. State and local officials
struggle to provide food, shelter, and medical care to hundreds of thousands of
people, not to mention schooling for the tens of thousands of children
accompanying them, all with minimal help from the federal government. We have
as a nation come to focus not so much on the legal status of this crush of
humanity as on the fiscal, logistical, social, and ethical challenges it poses.
Texas governor Greg Abbott is undoubtedly the most
visible and energetic elected Republican official responding to this crisis.
Yet even as he asserts his state’s right to police its border with Mexico, he
proudly claims credit for transporting more than 105,000 recently arrived
migrants out of his state to destinations such as Los Angeles, Denver,
Philadelphia, Chicago, Washington, and New York. However slick or
mean-spirited, such efforts are merely facilitating what would eventually
happen anyway — albeit in a presumably more deliberate, orderly, or benevolent
manner. After all, there are always a few migrants who arrive at the border
prepared to pay for their own transportation to the interior. And many more
have relatives in the United States who are prepared to pay their way. Needs
for travel assistance have been greatest for those from countries such as
Venezuela that lack a history of migration to the United States; such
individuals have many fewer established ties to relatives and communal institutions
capable of aiding them. Yet even they receive travel and other assistance from
religious and charitable organizations, typically established and maintained by
other, earlier-arriving groups.
Commenting on developments in Texas, Muzaffar Chishti and
Julia Gelatt of the Migration Policy Institute, hardly a restrictionist outfit,
conclude that, “from the perspective of overwhelmed border city officials and
organizations, the [state-funded] buses provide a useful resource, even if the
underlying politics might be at odds.” These analysts go on to point out that
Republican officials are not unique in this respect: “Border cities have
strained to manage the increased arrivals, and the dynamic transcends clear
political lines. El Paso, led by a Democratic mayor, began quietly chartering
its own buses to New York City in August [2022], and later to Chicago, in
response to overcrowded shelters and the arrival of large numbers of migrants
without networks in the United States.”
Yet aside from the suddenness and scale of today’s
influx, these are the same challenges that communities across America have long
been grappling with — irrespective of the legal status of the migrants. The
burdens imposed on our communities and institutions by waves of poorly
educated, non-English-speaking migrants have never been easily or fairly
accounted for simply by their legal standing.
At the same time, recurrent episodes such as the recent
arrest on drug and gun charges of eight Venezuelan migrants squatting in a
house in the Bronx are stark reminders that the pervasive association of
illegal immigrants with crime is not entirely unfounded. Yet neither is it
typically or precisely accurate. As I will elaborate below, undocumented status
is not necessarily a crime. Moreover, crime rates among immigrants —
undocumented as well as documented — are consistently reported to be lower than
among nonimmigrants. Such findings have long been routinely cited by advocates,
allies, and the many sympathizers of immigrants to summarily dismiss legitimate
concerns about the social strains and disorder resulting from these historic
demographic changes. These of course do not typically rise to the level of
“crimes.” Yet because this has become the dominant frame
through which such developments get interpreted and debated, the persistent and
legitimate concerns of many Americans about the noncriminal but not inconsequential
impacts of mass migration are seldom adequately acknowledged or examined. Or
are simply dismissed as irrational or racist.
In a related vein, Alan Bersin, U.S. attorney for the
Southern District of California under President Clinton as well as “border
czar” and then commissioner of U.S. Customs and Border Protection under
President Obama, reminds us that the increased effectiveness of our
border-control measures over the past few decades has resulted in at least a
sixfold increase in the price charged by smugglers. Migrant-smuggling has been
transformed from the “lone coyote” or “mom-and-pop” operations of the 1990s
into “international smuggling networks that have become exceedingly well
funded, organized, trained, and equipped.” Bersin concludes that
migrant-smuggling now represents a “national security threat” that requires
“executive action,” designating it “a tier one priority for intelligence
collection, investigation, prosecution, and disruption.” Such highly informed
insights not only undermine simplistic notions that undocumented migration is
to be understood as a victimless crime but also lend considerable credence to
the instinctive, though often poorly articulated, concerns about illegal
immigration that so many Americans have been expressing.
***
The Center for Immigration Studies estimates that
as of February 2024 there were 14 million illegal immigrants in the United
States, 4 million more than in January 2021 when President Biden took office.
Many of these have arrived the old-fashioned way — surreptitiously. And
depending on the specific circumstances, such “entry without inspection” might
be a felony. But it is more typically treated as a misdemeanor, certainly on
the first attempt. Subsequent attempts might result in more-serious charges.
Yet, historically, individuals entering without inspection have seldom faced
prosecution. They have simply been returned to their country of origin, which
disposition has been facilitated — at least until recently — by the fact that
in most cases that country has been Mexico.
Nevertheless, “unlawful presence” in the United States
is not a criminal violation subject to punishment or
imprisonment. Such aliens are typically subject only to removal (deportation),
an administrative proceeding, not a criminal one. As libertarian lawyer Ilya
Shapiro has noted, “Not everything that’s illegal — meaning against the law or
violating the law — is a crime.” Yet once formally removed from this country,
aliens who return without permission are subject to criminal
prosecution and imprisonment.
Then there are the millions of immigrants residing here
illegally who originally arrived with proper documentation — perhaps as
tourists, students, or temporary workers — and then overstayed their visas.
Some of these may have subsequently become eligible for permanent legal
residency — for example, because their employer was able to sponsor them or
perhaps because they married a citizen — but then found themselves in legal
limbo because of bureaucratic delays or bungling.
Finally, in recent years the most dramatically expanding
and problematic cohort has been migrants who present themselves to authorities
and request asylum. Hundreds of thousands have now been accorded provisional
legal status and are awaiting final disposition of their claims to admission.
Many, indeed most, will eventually either be denied asylum or simply fail to
appear at their formal hearings, which are routinely scheduled years in
advance. In either case, it is reasonable to assume that these individuals will
continue to reside here, either illegally or perhaps with some form of
provisional relief such as a grant of temporary protected status (TPS). This
was crafted by Congress in 1990 to afford safe haven to foreign nationals from
specifically designated countries who were already residing here and would face
dangerous conditions upon their return home. In some situations, TPS has been
granted and then extended for more than 20 years. But in most cases, it has
eventually been terminated, though its beneficiaries have routinely continued
to reside here illegally.
Such contingent, often contradictory responses to illegal
immigration have a long history. Consider, for example, the once common process
of legalizing agricultural workers who entered the U.S. illegally. Dubbed
“drying out wetbacks,” this practice has long since been abandoned, and the
very terminology deemed unacceptable, even racist. Yet in the years immediately
after World War II, immigration officials were caught between the demands of
Mexican authorities concerned to legalize those among their nationals working
illegally in U.S. agriculture, and American farmers concerned to hold on to
those same Mexican workers and thereby avoid the costs associated with hiring
legally recruited Mexican guest workers, or braceros. The
tortuous remedy devised by the Immigration and Naturalization Service (INS) was
described critically in 1951 in the Report of the President’s
Commission on Migratory Labor:
In this improvisation, the
Immigration and Naturalization Service would be allowed to “deport” the wetback
by having him brought to the border at which point the wetback would be given
an identification slip. Momentarily, he would step across the boundary line.
Having thus been subjected to the magic of token deportation, the illegal alien
was now merely alien and was eligible to step back across the boundary to be
legally contracted.
It is worth pointing out that a few years after this
practice was implemented, the Eisenhower administration seemingly reversed
course with an aggressive deportation effort dubbed “Operation Wetback.” By the
time that program ended in 1955, under the direction of INS commissioner and
retired U.S. Army general Joseph Swing, approximately 1 million presumptively
illegal migrant farmworkers had been deported to Mexico.
From the same post-war period, another example of the
tortuous, often blurred line between illegal and legal immigrants was the
so-called Texas Proviso, a now forgotten provision of the Immigration and
Nationality Act of 1952, also known as the McCarran-Walter Act. Loudly
denounced for its maintenance of restrictive national-origins quotas as well as
its authorization of the exclusion or deportation of communists and other
subversives, the act made it a misdemeanor for aliens to enter without
inspection or to overstay nonimmigrant visas. It also prohibited the
transporting or harboring of illegal aliens.
Yet in response to influential agricultural interests,
represented on the critically situated Judiciary Committee by plantation-owner
Senator James Eastland of Mississippi, McCarran-Walter engaged in some sleight
of hand. Specifically, it deemed the “harboring” of illegal aliens a felony
punishable by a $2,000 fine and a prison term of five years. Yet the Texas
Proviso stipulated that neither employing nor providing transportation or room
and board to workers who happened to be illegal aliens constituted “harboring.”
Consequently, no penalties were to be imposed even on employers who knowingly
hired illegal workers. In other words, migrants residing here
without a valid visa could be deported, but not those working here!
Before gloating at such hypocrisy, we must consider
current law. The Texas Proviso remained in force until the Immigration Reform
and Control Act of 1986 (IRCA) finally enacted sanctions on employers who hire
undocumented immigrants. Nevertheless, the spirit if not the letter of the
Proviso endures, though we rarely acknowledge it. IRCA stipulated that
penalties be imposed on employers who “knowingly” hire undocumented immigrants.
Yet because of objections raised by civil libertarians, advocates concerned about
discrimination against Hispanics, and (especially) employers eager to avoid
burdensome regulations infringing on their hiring prerogatives, nothing
approaching a secure identity card proved acceptable. As a result, IRCA’s
provisions were reduced to a nullity. To satisfy the law and protect
themselves, employers today have only to rely on Social Security cards, rent or
utility receipts, and other such documents, all of which are easily falsified.
In other words, employer sanctions are virtually useless.
I say “virtually” because sanctions have proved
highly effective when administered through E-Verify, an online program
subsequently developed by the Department of Homeland Security, that allows an
employer to enter applicants’ tax and Social Security information into a
database that promptly verifies their eligibility for employment. E-Verify is
mandatory for all new hires in four states, for segments of the workforce in 16
others, and for all federal agencies as well as private contractors who do
business with those agencies. Yet when it comes to such private contractors
more generally, enforcement is spotty. All told, approximately half of all new
hires across the nation currently get screened through E-Verify. To be
effective, the proportion needs to be much higher. Until then, the ghost of the
Texas Proviso will continue to haunt us.
Members of Congress catering to business interests are
hardly the only parties guilty of hypocrisy and duplicity, however. Take the
Massachusetts district judge who in 2019 was charged by federal authorities
with conspiring with a court officer and a defense attorney to assist an
undocumented immigrant in evading detention by an Immigration and Customs
Enforcement (ICE) officer. The alien was a Dominican national who had entered
the U.S. illegally on three separate occasions, was a fugitive from justice in Pennsylvania,
and had most recently been arrested by local Massachusetts police on charges of
drug possession. Despite this record, the judge allowed him to exit her
courtroom surreptitiously and thence the courthouse by a back door, thereby
avoiding the ICE officer awaiting his release via the front lobby.
***
More than 20 years ago, the eminent legal
scholar Peter Schuck, reflecting on immigration law and policy, concluded:
The situations of actual and
putative migrants vary enormously, and any rational and humane immigration
policy will want to take many of these factors into account in determining
immigrants’ legal status. For this reason, immigration policymakers have chosen
to make the law ambiguous and open-ended on many crucial points, leaving
considerable room for interpretation and specialized judgment by the officials
who administer the law in the first instance, and, in the event of appeal
by appellate administrative tribunals and federal judges. The law thus grants
broad discretion to both low-level and high-level decision makers.
We are currently in an environment where the parameters
of such discretion are being not merely reconsidered but fundamentally
challenged. And so they should be. But in the heat and passions increasingly
aroused by mass migration, we all need to be mindful that the lines we are
seeking to reexamine, redefine, and reinforce are never going to be as bright
as we might wish.
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